Letter From The President Of The New York City Bar Association

2007-03-01 00:00

To The Readers Of The Metropolitan Corporate Counsel :

The name of Charles "Cully" Stimson has begun to fade into history and will be a footnote in the not-too-distant future. As you may remember, Mr. Stimson was the administration's point person for detainee policy for the last year as deputy assistant secretary for detainee affairs. He gained substantial notoriety on January 11th when, during an interview with a local Washington-based station, he expressed dismay that attorneys at many of the nation's top law firms were representing prisoners at Guantanamo Bay, Cuba, and that the firms' corporate clients should consider ending their business ties with those firms. While an almost universal critical response silenced his remarks, unfortunately the policies of the administration with regard to the detainees have not changed over the past five years.

Mr. Stimson, an attorney and former federal and state prosecutor, teaches as an adjunct law professor at George Mason and at the Naval Justice School in Rhode Island. He was also a criminal defense attorney as a JAG officer. In his comments, he expressed his "shock" that major American law firms (some of which he mentioned on the radio) would represent terrorism suspects, hinted that they were paid by unsavory characters and suggested that companies should reconsider doing business with them. In response, we wrote to members of Congress to urge the Armed Services Committee to conduct hearings on the efforts of the Executive Branch, including those of Mr. Stimson, to harass and intimidate attorneys providing this representation and to interfere with the attorney-client relationship.

Faced with an avalanche of criticism, Stimson offered an "apology," six days later and resigned February 2nd. However, in his statement, he still did not accept any responsibility for trying to drive a wedge between attorneys representing the detainees and the firms' corporate clients. As a senior public official who sets policy on the detainees, and as an attorney, Stimson's remarks are unprofessional and possibly unethical, in that they are prejudicial to the administration of justice. It is ironic that it is the attorneys who are representing the Guantanamo detainees who are acting in the best traditions of the legal profession.

What is most disturbing however is the bigger picture. Stimson's comments are only a microcosm of the administration's views and policies with respect to the detainees. First, the administration has continued to characterize the detainees as terrorists (as did Stimson), although there has never been any proof of that assumption. Every study done by the government for its own purposes has concluded that Guantanamo does not house a high number of "terrorists."That is understandable since the administration's definition of "enemy combatant" includes people involuntarily conscripted into Taliban militias and held there by force. It is no surprise, therefore, that the government has indicated it is planning to bring charges against no more than 10 percent of the detainees.

Acting in the highest tradition of the legal profession, hundreds of attorneys from New York and around the country have volunteered their time to represent the detainees. The attorneys come from large and small firms, and the list includes solo practitioners, criminal defense attorneys, commercial litigators, public defenders, and personal injury attorneys. It is ironic that Attorney General Gonzales recently stated that it has taken as long as five years to bring detainees to trial because of delays caused by their attorneys. That is not correct. The cause of the delay has been the administration's policy with respect to the detainees.

The administration initially refused to conduct trials. Subsequently, the administration refused to work with Congress on the issue of the detainees. Only after the Supreme Court struck down the military courts did the President sign a bill, flawed at best, that establishes military tribunals for detainees.

Thus, five years later, attorneys continue to represent clients who were thrown into this legal "abyss" without a fair process to challenge their detention. What should have occurred to Mr. Stimson, but didn't, is that these attorneys may be the true heroes in this unsettling period of American history.